STATUTE OF WESTMINSTER, 1931:

Reference: http://www.statusquo.org/aru_html/html/const_safe.html

STATUTE OF WESTMINSTER, 1931:

Unread postby lazerzap » Thu Jan 02, 2014 8:30 pm

The Statute of Westminster, 1931 (UK), assented to on 11 December 1931, was enacted by the Parliament of the United Kingdom to give effect to certain resolutions passed by Imperial Conferences held in the years 1926 and 1930. S 10 of this Act provided that sections 2, 3, 4, 5 and 6 of the Act shall not extend to a Dominion unless that section is adopted by the Parliament of the Dominion. The option for any such adoption to have effect either from the commencement of this Act or some later date as specified was also given. S 10(3) of the Act included the Commonwealth of Australia as a dominion for the purposes of s 10.

The Australian parliament enacted the Statute of Westminster Adoption Act 1942 (assented to on 9 October 1942) adopting Sections 2, 3, 4, 5 and 6 of the Imperial Act (Statute of Westminster, 1931) taking effect from 3 September 1939. The purpose of the Adoption Act was to 'remove doubts as to the validity of certain Commonwealth legislation, to obviate delays occurring in its passage, and to effect certain related purposes, by adopting certain sections of the Statute of Westminster, 1931, as from the commencement of the war between His Majesty the King and Germany.'[28]

Sections 4, 9 (2) and (3) and 10 (2) of the Statute of Westminster, in so far as they are part of the law of the Commonwealth, of a State or of a Territory, have subsequently been repealed by section 12 of the Australia Act 1986.

In the book The Constitutional Structure of the Commonwealth , the author, K.C. Wheare, provides us with an explanation regarding the autonomy of Commonwealth nations.[29] The following is a summary of part of that section as it relates to Australia:

In discussions among members of the Commonwealth at the Imperial Conference of 1926 leading up to the enactment of the Statute of Westminster, 1931, it was agreed that the principal of equality should govern their relation.
One consequence of this was that the Parliaments of the overseas Members should be empowered to repeal or amend acts of the parliament of the United Kingdom extending to them. To that end, the clause that was eventually to become section 2 of the Statute of Westminster was drafted. That draft proposed that the Colonial Laws Validity Act of 1865 be repealed and that the powers of the parliament of a Dominion should include the power to repeal or amend any act of the parliament of the United kingdom in so far as the same part was part of the law of the Dominion.

But the repeal of this Act did more than remove the rule of construction by which an act of a colonial legislation was void if it was repugnant to an act of the parliament of the United Kingdom. It also contained some important provisions about certain requirements about the powers and procedure in amending colonial constitutions as follows:

Every Colonial legislature shall have, and be deemed at all times to have had, full power within its jurisdiction to establish courts of judicature, and to abolish and reconstitute the same, and to alter the constitution thereof, and to make provision for the administration of justice therein; and every representative legislature shall, in respect to the colony under its jurisdiction, have and be deemed at all times to have had, full power to make laws respecting the constitution, powers, and procedure of such legislature; provided that such laws shall have been passed in such manner and form as may from time to time be required by any act of parliament, letters patent, order-in-council, or colonial law for the time being in force in the said colony.

Before the enactment of the Statute of Westminster, the Australian Constitution could be altered in two ways: firstly, by the provisions contained in s128 of the Constitution, and secondly, by the Parliament of the United Kingdom. It was of fundamental importance to Australia that the constitution should be supreme over the legislatures and it was feared that the repeal of the Colonial Laws Validity Act may allow the Australian Parliament to alter the Australian Commonwealth Constitution Act and thereby amend or repeal the Constitution itself. Accordingly, an elaborate provision was inserted at S 8 to deny the Australian Parliament any power to repeal or amend the Constitution Act or the Constitution itself. A similar provision was made at s 9 protecting the status quo in respect of the States.

Accordingly, it was clear that the framers of the Statute of Westminster, and particularly the governments and parliaments in Australia at the time, believed that in the absence of any such safeguards, there was at least a strong presumption that the Australian parliament would acquire a power to alter the Constitution which it did not already posses. But there is another view. That view is that section 2 (2) of the Statute of Westminster did not increase the area of the powers of the Australian parliament beyond those laid down in the Australian constitution. Rather, it provided that any act passed by that parliament within the area of its powers should not be void through repugnancy to an imperial act extending to Australia.


So section 8 of the Statute did no more than preserve the existing law about how the Constitution and the Constitution Act could be altered. [30] The effect is to confine the operation of the Statute to matters within the sphere of competence of the Australia Federal authorities.[31] At least it ensured that the Federal Parliament could not use the powers given to it by section 2 of the Statute to make laws in disregard of the requirements of section 128 of the Constitution.[32] In other words, The Commonwealth Parliament could not, by itself, amend or repeal either the Constitution Act or the Constitution contained at clause 9 of the Constitution Act after the enactment of the Statute of Westminster, 1931.
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